Dyson Heydon is a man with a reputation for having “a mind like a steel trap” – and it has now snared him, argue union lawyers.
The retired High Court judge at the helm of the long-running unions royal commission was told on Friday he had no choice but to disqualify himself from the inquiry.
The barrister for the ACTU, which is leading the apprehended bias charge, told the hearing Mr Heydon’s status as a “truly brilliant” jurist would leave fair-minded onlookers “mystified” as to how he could possibly have failed to latch on to the nature of a Liberal Party event he had agreed to address.
Mr Heydon said earlier in the week he had overlooked the political link of the event despite an email trail that noted the Sir Garfield Barwick lecture was organised by a lawyers’ group of the NSW Liberals, that attendees had been warned to disclose political donations and that funds raised would go to state Liberal coffers.
ACTU senior counsel Robert Newlinds said there was a “low bar” when it came to arguing apprehended bias and that he needed to demonstrate only that a reasonable observer might think Mr Heydon might not be wholly unbiased.
“We know that you’re a man with a reputation for having a razor-sharp mind – to use another cliche, a mind like a steel trap,” Mr Newlinds told Mr Heydon on Friday.
“(So) the hypothetical observer is confused, perhaps even confounded …
“He is confused as to why it is that you say you never understood it was a fundraiser, because it is out of kilter with what he would expect of a person with your reputation.
“That is, it is blindingly obvious from the emails you were sent.”
Mr Heydon will spend the weekend considering the arguments, which came as counsel for the CFMEU dropped a bombshell allegation that the royal commission had withheld documents when it released a tranche of correspondence relating to the lecture.
John Agius SC said one email appeared to have been “doctored” to remove reference to attachments, including one relating to political donation compliance.
Counsel assisting Jeremy Stoljar SC said there was no basis for such a serious allegation, and Mr Agius appeared to back away from it after being told the email management program used by commission staff was the culprit.
But the issue drew concern from Mr Newlinds, who said he had initially been given access to one email that should have alerted Mr Heydon to the political nature of the memorial lecture – but mid-morning on Friday was handed a second such email.
“You did try and force me on Monday, in circumstances where you emphatically told me that I had all the documents,” he said in a rare heated moment.
“It now turns out I didn’t.
“Part of the problem with forcing cases on when people say they’re not ready is that this sort of thing happens all the time.
“But, boy, you’ve got to be confident when you tell someone that they’ve got all the documents.”
The commission may reconvene on Tuesday, when Mr Heydon hopes to have an answer on his future.